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Life Begins at Ejaculation: Legislating Sperm As the Potential to Create Life and the Effects on Contracts for Artificial Insemination Harvey L

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Life Begins at Ejaculation: Legislating Sperm As the Potential to Create Life and the Effects on Contracts for Artificial Insemination Harvey L Journal of Gender, Social Policy & the Law Volume 21 | Issue 1 Article 2 2012 Life Begins at Ejaculation: Legislating Sperm as the Potential to Create Life and the Effects on Contracts for Artificial Insemination Harvey L. Fiser Paula K. Garrett Follow this and additional works at: http://digitalcommons.wcl.american.edu/jgspl Part of the Law Commons Recommended Citation Fiser, Harvey L., and Paula K. Garrett. "Life Begins at Ejaculation: Legislating Sperm as the Potential to Create Life and the Effects on Contracts for Artificial Insemination." American University Journal of Gender Social Policy and Law 21, no. 1 (2012): 39-56. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Journal of Gender, Social Policy & the Law by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Fiser and Garrett: Life Begins at Ejaculation: Legislating Sperm as the Potential to LIFE BEGINS AT EJACULATION: LEGISLATING SPERM AS THE POTENTIAL TO CREATE LIFE AND THE EFFECTS ON CONTRACTS FOR ARTIFICIAL INSEMINATION HARVEY L. FISER, J.D., AND PAULA K. GARRETT, PH.D.* I. Introduction ..............................................................................................39 II. Religious and Historical Context of Sperm ............................................41 III. Sperm, Egg, Gametes, and Zygotes: Scientific Context of Sperm and Post-fertilized Development ......................................................43 IV. The Law of the Body (Excluding Sperm) .............................................45 V. The Courts and Sperm ............................................................................47 VI. Granting False Importance to a Substance That Is Not Human Life: The Error of Potentiality ..........................................................51 A. As Compared to Other Body Parts ............................................51 B. An Illogical Approach to Sperm as Potentiality........................52 C. Semantics Matter–If Sperm Is Potential Life ............................53 VII. Conclusion ...........................................................................................54 I. INTRODUCTION In numerous legal cases dealing with artificial insemination through sperm donation, courts have elevated sperm, a substance that alone cannot result in a child, to the status of a potential life.1 Unlike rulings on the control or sale of blood, bone marrow, organs, or even faces, rulings on sperm have often privileged sperm as a substance that is something more than a body part or product. Courts and commentators that make this distinction refer to sperm’s “potential to produce life”2—in effect, elevating * Harvey L. Fiser, J.D., Associate Professor of Business Law, Millsaps College, Jackson, Mississippi & Paula K. Garrett, Ph.D. Vice President for Academic Affairs and Dean of the College, Warren-Wilson College, Asheville, North Carolina. 1. See infra Part V. 2. See, e.g., In re Estate of Kievernagel, 83 Cal. Rptr. 3d 311, 316 (Ct. App. 2008). 39 Published by Digital Commons @ American University Washington College of Law, 2012 1 Journal of Gender, Social Policy & the Law, Vol. 21, Iss. 1 [2012], Art. 2 40 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 21:1 it to a status that ultimately treats sperm as equal to a life. More than half the states in the United States have no legislation to direct judges in cases dealing with sperm used in artificial insemination.3 Without legislative guidance, judges have allowed personal and religious values to influence their rulings. These judicial rulings may negate the right to contract, placing men willing to donate sperm for artificial insemination at risk of enforced financial support of numerous children, and placing women— whether single or part of a lesbian couple—at risk of losing parenting rights by granting custody rights to sperm donors.4 Clearly, such rulings introduce unintended consequences into cases involving sperm donation.5 The unpredictability of judicial interpretation in cases involving artificial insemination is particularly magnified in situations involving single women or lesbian couples; these women lack other legal protections, and they may face additional prejudice in child custody matters arising from artificial insemination procedures using donated sperm.6 Furthermore, in light of recent state referenda attempting to legislatively set the point at which life begins,7 such rulings could lead to serious limitations on the use of donated sperm for anyone other than married, infertile, heterosexual couples for which a donor “stands in” for the husband.8 Without clear policies regulating contracting for sperm, legal cases have been decided by reference to sperm’s status as potential creator of life, 3. Harvey L. Fiser & Paula K. Garrett, It Takes Three, Baby: The Lack of Standard, Legal Definitions of “Best Interest of the Child” and the Right to Contract for Lesbian Potential Parents, 15 CARDOZO J.L. & GENDER 1, 10, n.38 (2008). 4. Although it is beyond the scope of this Article, the subject of laws regarding the donation of eggs deserves further analysis, particularly in comparison to the subject of laws regarding sperm donation. This Article is focused on the legal treatment of sperm and the implications for unmarried women, particularly lesbian women, and, thus, does not examine this comparison. 5. For a complete discussion of the potential consequences of legal actions regarding artificial insemination in states with and without legislation protecting the donor and recipients, see Fiser & Garrett, supra note 3, at 11-19. 6. For a complete discussion of the potential of legal consequences that have an uncertain effect on lesbian contracts for artificial insemination procedures, see id. at 19- 20. 7. See Erick Eckholm, Push for “Personhood” Amendment Represents New Tack in Abortion Fight, N.Y. TIMES (Oct. 25, 2011), http://www.nytimes.com/2011/10/26//politics/personhood-amendments-would-ban- nearly-all-abortions.html (discussing Mississippi’s referendum); see also infra Part VI.C. 8. The Uniform Parentage Act is written, both in its original and in its revised version, in the context of heterosexual infertility. See, e.g., UNIF. PARENTAGE ACT § 702 cmt. (2000) (amended 2002) (discussing parentage with a presumption of heterosexual marriage). Its application in other contexts is therefore unclear. See also Fiser & Garrett, supra note 3, at 10 (acknowledging the failure of many states to protect the family rights of non-heterosexual couples and similar limitations on artificial insemination). http://digitalcommons.wcl.american.edu/jgspl/vol21/iss1/2 2 Fiser and Garrett: Life Begins at Ejaculation: Legislating Sperm as the Potential to 2012] LIFE BEGINS AT EJACULATION 41 ultimately resulting in courts treating sperm as if it were the child itself.9 However, treating sperm as life or potential life in the legal context requires an erroneous conceptual leap in both property law and science. By elevating sperm to a “higher” status of property law, courts have, in legal effect, established that life begins at ejaculation. This Article reviews the religious contexts that lead to the judicial treatment of sperm as life, and the scientific contexts demonstrating the misunderstanding of biology informing such beliefs. This Article then reviews the current state of the law regarding donation of sperm for artificial insemination and clarifies the mistakes courts and commentators make when they elevate sperm from a freely transferable commodity to a category of property that has the potential for life—or is life. To accomplish this, this Article compares cases involving sperm with cases involving the donation of other bodily fluids, useable organs, and tissues. Finally, this Article demonstrates the potential for absurd consequences that flow from the current faulty reasoning employed by courts in cases dealing with sperm in states lacking legislation protecting the donor, ultimately arguing that clarification is needed in laws regarding sperm donation—particularly the categorization of sperm as property for which contract law applies. II. RELIGIOUS AND HISTORICAL CONTEXT OF SPERM Although much of current law is based on Judeo-Christian mores, current law related to sperm and familial relationships is often based on an inconsistent application of Judeo-Christian biblical texts.10 Admittedly, an assertion that American jurisprudence is based on Judeo-Christian law conjures objections, based largely on an understanding of the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . .”11 However, a debate has long waged over the understanding of the First Congress’s meaning. Throughout history, many have argued that 9. See infra Part V (reviewing cases that analyzed the status of donated sperm). 10. See Roederick C. White, Sr., How the Wheels Come Off: The Inevitable Crash of Irreconcilable Jurisprudence: Laws Based on Orthodox Judeo-Christian Theology in a Pluralistic Society, 37 S.U. L. REV. 127, 136-46 (2009) (reviewing how early American laws were based on Judeo-Christian theology); Sarah E. Kay, Note, Redefining Parenthood: Removing Nostalgia from Third-Party Child Custody and Visitation Decision in Florida, 39 STETSON
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